263

CHAPTER XVII.

OF TITLE BY PRESCRIPTION.

A THIRD method of acquiring real property by purchase is of title by prethat by prescription (1); as when a man can shew no other scription.

(1) Bracton (in the 22nd chapter of this day be raised by grant: for, the his 2nd book,) says, rerum corpora

law allows prescriptions, only to supply lium dominia transferentur, sine titulo the loss, or supposed loss, of a grant. aut traditione, per usucaptionem, scili- Upon usage from time to which the cet, per longam, continuam, et pacificam memory of man runneth not to the possessionem, ex diuturno tempore. Con. contrary, the law presumes a grant tinuam dico, ita quod non sit interrup- and a lawful beginning, and allows ta: interrumpi enim poterit multis mo- such usage for a good title; but still, it dis, sine violentiâ adhibitá, et per talem is but in supply of the loss of a grant: interruptionem, nunquam acquiret pos- and therefore, for such things as can sidens, ex tempore, liberum tenementum. have no lawful beginning, nor be crePacificam dico, quia si contentiosa fuerit, ated at this day by any manner of idem erit quod prius, si contentio fuerit grant, or reservation, or deed that can justa, et diligenter prosecuta.” Lord be supposed, no prescription is good. Coke translates, and adopts this ac- (See the next note). count of the qualities and incidents of The Roman law made a difference prescription, in his commentary upon between præscriptio, in its general and Littleton. (1 Instit. 113).

extended sense, and that kind of it In the case of Potter v. Sir Henry which they distinguished by the name North, (1 Ventr. 386), it was said, a of usucapio. By usucapio, they meant prescription that goes to claim a real the manner of acquiring the property of interest in solo alieno, is a title; and as things, by the effect of time. Prea title must be strictly pleaded; it is scriptio had also the same meaning, not like a prescription by way of dis- but it signified, moreover, the manner charge, or for an easement. Nothing of acquiring and losing all sorts of can be prescribed for, that cannot at rights and actions, by the same effect VOL. II.

GG

tween custom

title to what he claims, than that he, and those under whom he claims, have immemorially used to enjoy it. Concerning customs, or immemorial usages, in general, with the several requisites and rules to be observed, in order to prove their existence and validity, we inquired at large in the preceding part of these commentaries (a). At present therefore I shall only, first, distinguish between custom, strictly taken, and prescription; and then shew what sort of things may be

prescribed for. Distinction be. And, first, the distinction between custom and prescripand prescription.

tion (2) is this: that custom is properly a local usage, and not annexed to any person ; such as a custom in the manor of Dale that lands shall descend to the youngest son: prescription is merely a personal (3) usage; as, that Sempronius and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege (6). As for example, if there be a usage in the parish of Dale, that all the inhabitants of that parish may dance on a certain close, at all times, for their recreation, (which is held (c) to be a lawful usage), this is strictly a custom, for

it is applied to the place in general, and not to any parti[ [ * 264 ] cular persons: but if the *tenant who is seised of the manor

of Dale in fee, alleges that he and his ancestors, or all those

(a) See Vol. I. pag. 75, &c.

(0) Co. Litt. 113.

(c) 1 Lev. 176.

of the time regulated by law. (Domat's scription is not co-existent with general Civil Law, tit. 7, sect. 4 & 5. Turn- custom, but derogatory from general bull's note to Heineccius, book 1, ch. custom; and its origin must have been 12). We do not make this difference; founded on a grant, now evidenced by prescription, with us, is the word ap- immemorial usage; for which reason, plied both to the manner of acquiring no claim by prescription can be mainthe property of things, and to that of tained, but such as might have been acquiring and losing all sorts of rights. the subject of a legal grant: (see the

(2) Custom and prescription, though last note): but this rule does not alconfounded in common language, are, ways hold with respect to custom. strictly speaking, very distinct in their (Weekly v. Wildman, 1 Lord Raym. nature; (Baker v. Bearman, W. Jones, 407. Bennett v. Read, 1 Anstr. 325). 367); it is true, that immemorial usage (3) A body politic or corporate may is essential to them both; but, pre- prescribe. (Co. Litt. 113 b).

whose estate he hath in the said manor, have used time out of mind to have common of pasture in such a close, this is properly called a prescription for this is a usage annexed to the person of the owner of this estate. All prescription must be either in a man and his ancestors, or in a man and those whose estate he hath (d): which last is called prescribing in a que estate. And formerly a man might, by the common law, have prescribed for a right which had been enjoyed by his ancestors or predecessors at any distance of time, though his or their enjoyment of it had been suspended (e) for an indefinite series of years. But, by the statute of limitations, 32 Hen. VIII. c. 2, it is enacted, that no person shall make any prescription by the seisin or possession of his ancestor or predecessor, unless such seisin or possession hath been within threescore years next before such prescription made (f) (4).

Secondly, as to the several species of things which may, Incorporeal heor may not, be prescribed for: we may, in the first place, reditaments

alone can be observe, that nothing but incorporeal (5) hereditaments can claimed by pre

scription. (d) 4 Rep. 32.

name of usucapio; (Ff. 41. 3. 3); so (e) Co. Litt. 113.

called because a man, that gains a title (f) This title, of prescription, was by prescription, may be said usu rem well known in the Roman law by the capere.

(4) The statute of 21 Jac. 1, c. 16, chapter. And it is true, that later takes away the right of entry into legal writers do, like our author, only lands, after twenty years have elaps- admit prescription to operate in the ed from the time when such right case of incorporeal hereditaments. But, of entry accrued; with a saving in there is a kind of negative prescription favour of infants, femes covertes, luna- established by the statute law, extendtics, and persons imprisoned or beyond ing to corporeal hereditaments, by the seas. By the statute of 1 Mary, which an uninterrupted possession for sess. 2, c. 5, it is enacted, that the sta- a certain number of years, though it tute of 32 Hen. VIII. c. 2, shall not ex- cannot give a direct title to lands, will tend to any writ of right of advowson, give the possessor a substantially good quare impedit, or assize of darrein pre- title, by taking from all other persons sentement, or jure patronatus.

the right of entering on such heredi(5) This is in apparent contradiction taments, or of maintaining any action, to the old law, as laid down by Brac- or suit, for them. (See the last note, ton, and stated in the first note to this and note (2) to chap. 13).

be claimed by prescription: as a right of way, a common, &c.; but that no prescription can give a title to lands, and other corporeal substances, of which more certain evidence may be had (g). For a man shall not be said to prescribe, that he and his ancestors have immemorially used to hold the castle of Arundel: for this is clearly another sort of title; a title by corporal seisin and inheritance, which is more permanent, and therefore more capable of proof, than that of prescription. But, as to a right of way, a common, or the like, a man may be allowed to prescribe; for of these there

is no corporal seisin, the enjoyment will be frequently by in[ *265 ]

tervals, and therefore the right to enjoy them can depend on Prescription nothing else but immemorial usage. 2. A prescription must must always be always be *laid in him that is tenant of the fee. A tenant for ant of the fee. life, for years, at will, or a copyholder, cannot prescribe, by

reason of the imbecility of their estates (h). For, as prescription is usage beyond time of memory, it is absurd that they should pretend to prescribe for any thing, whose estates commenced within the remembrance of man. And therefore the copyholder must prescribe under cover of his lord's estate (6), and the tenant for life under cover of the tenant in fee-simple. As if tenant for life of a manor would prescribe for a right of common as appurtenant to the same, he must prescribe under cover of the tenant in fee-simple; and must plead that John Stiles and his ancestors had immemorially used to have this right of common, appurtenant

(8) Dr. & St. Dial. 1, c. 8. Finch, 132.

() 4 Rep. 31, 32.

(6) If a copyholder, as such, claims prescribing in his own name, he is, right of common, or other profit, in from necessity, allowed, in his pleading, the soil of a stranger, he ought, as to allege his claim to be dependent on stated in the text, to prescribe in the custom, though prescription would, name of the lord of the manor; but if under other circumstances, be the corthe copyholder claims common, rect allegation. (Foiston v. Cracherode, other profit, in the lord's soil, then of 4 Rep. 31 b. Gateward's case, 6 Rep. course he cannot prescribe against the 61 a. Day v. Savage, Hob. 86. Rolord, in the lord's name; and as the berts v. Young, Hob. 286. Pearce v. nature of his estate prevents him from Bacon, Cro. Eliz. 390).

or

existence of a

grant.

to the said manor, and that John Stiles demised the said manor, with its appurtenances, to him the said tenant for life. 3. A prescription cannot be for a thing which cannot It cannot be for be raised by grant. For the law allows prescription only in in grant; for it

a thing not lying supply of the loss of a grant, and therefore every prescrip- presupposes the tion presupposes a grant to have existed (7). Thus, the lord of a manor cannot prescribe to raise a tax or toll upon strangers; for, as such claim could never have been good by any grant, it shall not be good by prescription (i). 4. A That which fourth rule is, that what is to arise by matter of record can- of record canno

arises by matter not be prescribed for, but must be claimed by grant, entered be prescribed

for, but must be on record (8); such as, for instance, the royal franchises of claimed by deodands, felons' goods, and the like. These, not being for- grant. feited till the matter on which they arise is found by the in.. quisition of a jury, and so made a matter of record, the forfeiture itself cannot be claimed by any inferior title. But the franchises of treasure-trove, waifs, estrays, and the like, may be claimed by prescription (9); for they arise from private contingencies, and not from any matter of record (k). 5. As to the manAmong things incorporeal, which may be claimed by pre- int.

ner of prescribscription, a distinction must be made with regard to the manner of prescribing; that is, whether a man shall prescribe in a que estate, or in himself and his ancestors. For, if a man prescribes in a que estate, (that is, in himself and those whose estate he holds), nothing *is claimable by this

[ * 266 ] prescription, but such things as are incident, appendant, or appurtenant to lands; for it would be absurd to claim any (i) 1 Ventr. 387.

(1) Co. Litt. 114.

(7) See note (1) to this chapter, as (8) For, prescription being but an also note (67) to chapter 3. And it usage in pais, can never extend to such should seem, that if a grant, though things as cannot be seised or had withmade before time of legal memory, ap